There is a paradox with the EU citizenship. While EU nationals exercise their right of free movement and their right to reside freely in any Member state of the EU, they are politically disenfranchised and lose the right to vote in the national elections of their country of origin.

In particular, the free movement of workers, which was first established with the Treaty of Rome,[1] is currently a fundamental right guaranteed by the Treaty on the Functioning of the European Union (hereinafter TFEU).[2] Based on the provisions of the TFEU, EU citizens are entitled to move and reside freely within the territory of any of the Member States,[3] to work there without needing a work permit, reside there for that purpose and enjoy equal treatment with nationals in access to employment without any discrimination based on nationality as regards employment, remuneration and other conditions.[4]

The right to move
and reside freely within the territory of the Member States is one of the four
components of the EU Citizenship.[5] Nowadays, according to
Eurostat, EU citizens living in a EU Country other than their country of origin
‘accounted in 2018 for 3.9 % of total EU resident population, which was 1.2 pp
more than in 2008’.[6]

Such free movement
and the right to reside in another country in the EU has led to the following
paradox: EU citizens who live in a country other than their country of origin
have limited political rights to participate in their country of residence[7] and some of them have lost
their political rights or have made it practically not possible to participate
in the political life of their country of origin.

This happens because a number of EU Member states, such as Germany,[8] and United Kingdom[9] limit the rights of their nationals to vote in national elections based on a residence condition and allow their nationals who live abroad to vote only for a certain number of years. Likewise, Greece is going to enact for the first time a complete legal framework to facilitate its diaspora living in different corners of the world to vote in national elections. However, not all Greeks expats will have the right to vote. Only those who live abroad for a maximum of 35 years (in combination with 2 years spent in Greece) and second those who filled tax returns a year before the elections or the year of the elections.[10]

Such limits on the
right to suffrage are found to be compatible with the European Convention on
Human Rights.[11]
Indeed such policies are justified as countries
have a compelling state interest to limit the right to vote on their nationals
whose links with the motherland have been diminished.[12]

But the compatibility
of such restriction on the right to vote is questioned from the perspective of
EU law and in particular the freedom of movement. British courts faced this issue
recently and regarding the Brexit referendum, as hundreds of thousands of UK
nationals living in EU countries were deprived of a vote after 15 years of
non-residence in the UK. British Courts first in the Preston case[13] and second in the Harry
Shindler and others case[14] held that the limits to
the Parliamentary franchise do not have a direct impact on the freedom of
movement. However, they did not find it necessary to make a preliminary
reference for a ruling by the European Union Court in Luxemburg on the impact
of the limits on the freedom of movement.

At EU level, in 2014 the Commission stated that ‘this loss of the right to vote in national elections in the country of nationality because of the exercise of the right to move in another EU country is perceived by Union citizens as a gap in their political rights.’[15] To this direction, the Commission recommended to the Member States of the EU that do not allow their citizens to vote because they are residents in another Member State to remove this residence condition and to readmit their nationals into the electoral rolls.[16]

More recently, the
Commission in 2017 reported the development of the Union on these issues and
confessed that ‘Being a European citizen also means enjoying political rights.
Every adult EU citizen has the right to vote in European Parliament elections.
Mobile EU citizens have the right to vote in their country of residence, or in
their country of origin. This right is not exercised as fully as it could be.’[17]

Limiting the political rights of Europeans because they exercise their fundamental European rights raises key political and ethical questions about what European Union we want, namely whether we see the European Union only as an economic union absorbing economic immigrants, politically disenfranchised, or if we see the European Union as a community whose residents share principles and common ideals for democracy.

[5] See TFEU
Article 20 (2) (a). The other three components are first ‘the right to vote and
to stand as candidates in elections to the European Parliament and in municipal
elections in their Member State of residence, under the same conditions as
nationals of that State’ second, ‘the right to enjoy, in the territory of a
third country in which the Member State of which they are nationals is not
represented, the protection of the diplomatic and consular authorities of any
Member State on the same conditions as the nationals of that State’ and third
‘the right to petition the European Parliament, to apply to the European
Ombudsman, and to address the institutions and advisory bodies of the Union in
any of the Treaty languages and to obtain a reply in the same language’ see
TFEU Article 20 (2) (b), (c) and (d) respectively. For more details see Jo
Shaw, Citizenship: Contrasting Dynamics at the interface of Integration and
constitutionalism in Paul Craig and Greainne De Burca, The Evolution of EU Law
(OUP 2011) 575.

[7] The Treaty Functioning the European Union in article 20 (2) (b) provides
that the EU citizens have ‘the right to vote and to stand as candidates in
elections to the European Parliament and in municipal elections in their Member
State of residence, under the same conditions as nationals of that State.’

[10] Bill on the facilitation of the exercise of the voting rights of voters
living abroad and amendment of the electoral process, Article 2.

[11] The European Court of Human Rights first referred to this issue at
Matthews v United Kingdom (1999) 28 EHRR 361. In addition, in Shindler v The
United Kingdom case the ECtHR found that the 15 year rule is not a
violation of Article 3 of Protocol No. 1
in restricting the right to Mr Shindler’s right to free elections. see Shindler
v The United Kingdom ECHR (2010) ECHR
2222.

[12] Matthews v United Kingdom (1999) 28 EHRR 361
[65] ‘persons who are unable to take part in elections because they live
outside the jurisdiction, as such individuals have weakened the link between
themselves and the jurisdiction’.

[13] Preston, Regina (on The Application of) v The Lord President of the
Council [2012] EWCA Civ 1378

[15]
2014/53/EU: Commission Recommendation of 29 January 2014 addressing the
consequences of disenfranchisement of Union citizens exercising their rights to
free movement

OJ L 32, 1.2.2014, p. 34–35
[9].

[16] ‘1. Where
Member States’ policies limit the rights of nationals to vote in national
elections based exclusively on a residence condition, Member States should
enable their nationals who make use of their right to free movement and
residence in the Union to demonstrate a continuing interest in the political
life in the Member State of which they are nationals, including through an
application to remain registered on the electoral roll, and by doing so, to
retain their right to vote. 2.Where Member States allow their nationals
residing in another Member State to retain their right to vote in national
elections through an application to remain registered on the electoral roll,
this should be without prejudice to the possibility for those Member States to
put in place proportionate accompanying arrangements, such as reapplication at
appropriate intervals. 3.Member States that allow their nationals residing in
another Member State to retain their right to vote in national elections
through an application or a reapplication to remain registered on the electoral
roll should ensure that all relevant applications may be submitted
electronically. 4.Member States providing for the loss of the right to vote in
national elections by their nationals residing in another Member State should
inform them by appropriate means and in a timely manner about the conditions
and the practical arrangements for retaining their right to vote in national
elections.’

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